Appeal of Panaggio

Shaheen & Gordon, P.A., of Manchester (Jared P.
O'Connor on the brief and orally), for the petitioner.

Tentindo, Kendall, Canniff & Keefe LLP, of Boston,
Massachusetts (Robert S. Martin on the brief and orally), for
the respondent.

BASSETT, J.

The
petitioner, Andrew Panaggio, appeals a decision of the New
Hampshire Compensation Appeals Board (board). The board
denied his request for reimbursement from the respondent, CNA
Insurance Company (insurance carrier), for the cost incurred
for therapeutic cannabis authorized pursuant to RSA chapter
126-X, to treat his work-related injury.[1] We reverse in
part, vacate in part, and remand.

The
record supports the following facts. Panaggio suffered a
work-related injury to his lower back in 1991. A permanent
impairment award was approved in 1996, and in 1997 he
received a lump-sum settlement. Panaggio continues to suffer
ongoing pain as a result of his injury and has experienced
negative side effects from taking prescribed opiates. In
2016, the New Hampshire Department of Health and Human
Services determined that Panaggio qualified as a patient in
the therapeutic cannabis program, and issued him a New
Hampshire cannabis registry identification card. See
RSA 126-X:4 (Supp. 2018). Panaggio purchased medical
marijuana and submitted his receipt to the workers'
compensation insurance carrier for reimbursement. The carrier
denied payment on the ground that "medical marijuana is
not reasonable/necessary or causally related" to his
injury.

Panaggio
challenged the insurance carrier's denial before the New
Hampshire Department of Labor. The hearing officer found that
Panaggio had "failed to satisfy his burden of proof that
the outstanding medical treatment is reasonable, related or
made necessary by the work injury." Therefore, the
officer concluded that "reimbursement and payment of
expense associated with the medicinal marijuana cannabis is
not reasonable."

Panaggio
appealed the hearing officer's decision to the board.
Following a hearing, the board rejected the insurance
carrier's position that Panaggio's use of medical
marijuana is not medically reasonable or necessary. The board
credited Panaggio's testimony that "cannabis is
palliative and has the added benefit of reducing his need for
opiates," and unanimously found that Panaggio's
"use is reasonable and medically necessary."
Nonetheless, a majority of the board upheld the carrier's
refusal to reimburse Panaggio, concluding that "the
carrier is not able to provide medical marijuana"
because such reimbursement is "not legal under state or
federal law."

The
board observed that "possession of marijuana is still a
federal crime," and that the registry identification
card issued by the State explains that RSA chapter 126-X
"does not exempt a person from federal criminal
penalties for the possession of cannabis." (Quotation
omitted.) Relying upon the statutory language that
"[n]othing in this chapter shall be construed to require
. . . [a]ny health insurance provider, health care plan, or
medical assistance program to be liable for any claim for
reimbursement for the therapeutic use of cannabis," RSA
126-X:3, III(a), the board determined that RSA 126-X:3,
III(a) (2015) bars Panaggio's request for reimbursement,
finding that the clear purpose of the statute is "to
protect such providers from being subject to criminal
prosecution under federal law." Although noting that
workers' compensation insurance carriers are not
expressly identified in the statute, the board concluded
that, because such carriers "provide payments for
medical treatment just as health insurers do,"
subsection 3, III(a), applies to them as well.

One
member of the three-member board dissented. He disagreed with
the majority's conclusion that because "marijuana is
still illegal under federal law . . . [, ] requiring the
[carrier] to provide reimbursement would make the [carrier]
complicit in this legal violation," noting that the
insurance carrier "cites no specific section of the
Federal Controlled Substances Act that reimbursement to the
claimant would violate." In addition, he disagreed with
the majority's interpretation of RSA 126-X:3, III,
reasoning that it was not supported by a "simple reading
of the law's language" and "[i]f the
legislature had wanted to include workers' compensation
[insurers], these insurers could have been listed."
Panaggio unsuccessfully moved for reconsideration, and this
appeal followed.

On
appeal, Panaggio argues that the board erred in its
interpretation of RSA 126-X:3, III, and when it based its
decision in part on the fact that possession of marijuana is
illegal under federal law. We will not disturb the
board's decision absent an error of law, or unless, by a
clear preponderance of the evidence, we find it to be unjust
or unreasonable. Appeal of Phillips, 169 N.H. 177,
180 (2016); see RSA 541:13 (2007). The appealing
party has the burden of demonstrating that the board's
decision was erroneous. See Appeal of Fay, 150 N.H.
321, 324 (2003). All findings of the board upon questions of
fact properly before it are deemed to be prima facie
lawful and reasonable. See RSA 541:13. Thus, we
review the board's factual findings deferentially.
See Appeal of N.H. Dep't of Corrections, 162
N.H. 750, 753 (2011). We review its statutory interpretation
de novo. Id.

We
first address Panaggio's argument that the board's
interpretation of RSA 126-X:3, III(a) was erroneous. He
asserts that "[a]bsent crystal clear instruction from
the New Hampshire Legislature to do otherwise, the Board was
. . . required to order the insurer to pay" pursuant to
the obligation imposed by the workers' compensation
statute. See RSA 281-A:23, I (2010) (providing that
an injured employee is entitled to have his or her
employer's insurance carrier furnish "reasonable
medical . . . care . . . for such period as the nature of the
injury may require"). The insurance carrier does not
challenge the board's finding that Panaggio's use of
medical marijuana is reasonable and medically necessary.
Rather, the carrier argues that "[t]he clear purpose
of" RSA 126-X:3, III(a) "is to prevent any
reimbursement of medical marijuana by any entity that would
be subject under contract or law to pay." According to
the carrier, "the plain and unambiguous language of the
statute creates . . . an explicit prohibition to require an
insurer to pay a claim for reimbursement."

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;On
questions of statutory interpretation, we are the final
arbiters of the intent of the legislature as expressed in the
words of a statute considered as a whole. Appeal of
Phillips, 169 N.H. at 180. We first examine the language
of the statute and ascribe the plain and ordinary meanings to
the words used. Id. We interpret legislative intent
from the statute as written and will not consider what the
legislature might have said or add language that the
legislature did not see fit to include. Id. In
addition, we construe the workers' compensation statute
liberally to give the broadest reasonable effect to its
...

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